OSNews: http://www.osnews.com/story/25318/Barnes_Noble_Asks_DoJ_to_Investigate_Microsoft_s_Patent_Trolling
Exploring the Future of Computingen-usCopyright 2001-2016, David Adamsadam+nospam@osnews.comSat, 10 Dec 2016 06:23:38 GMThttp://www.osnews.com/images/osnews.gifOSNews.comhttp://www.osnews.com
...http://www.osnews.com/thread?496675
http://www.osnews.com/thread?496675It holds no water, not because MS is obviously abusing it, but because if MS loss the government would be admitting that the patent system is a broken fiasco, and they won't do that, and this is because billions have been spend in building patents arsenals from rich companies. What if suddenly software patents were abolished? then all that billions wasted would go direct down the drain.

So this case will end in an arrangement out of the court or Barnes & Noble loses.Edited 2011-11-09 16:40 UTCWed, 09 Nov 2011 16:21:00 GMTdonotreply@osnews.com (Hiev)CommentsRE: ...http://www.osnews.com/thread?496677
http://www.osnews.com/thread?496677Hopefully you are wrong. I think B&N have a case. They are using their patents punitively to hold back Android. The fact that they are suing for different licenses than they offered to license is one issue. The fact that they are charging more for the licenses than they are for their entire Windows Phone 7 is another. Guess we will see who has the best argument.Wed, 09 Nov 2011 16:30:00 GMTdonotreply@osnews.com (TechGeek)CommentsRE[2]: ...http://www.osnews.com/thread?496679
http://www.osnews.com/thread?496679

They are using their patents punitively to hold back Android. The fact that they are suing for different licenses than they offered to license is one issue.

That's not an issue what-so-ever. If patent violations have occurred, that's the bottom line.

The fact that they are charging more for the licenses than they are for their entire Windows Phone 7 is another.

They can charge however much they want.

Nothing is going to come of this for two simple reasons... As Hiev already explain there's too much at stake, and B&N has a weak case regardless.Wed, 09 Nov 2011 16:35:00 GMTdonotreply@osnews.com (ilovebeer)CommentsRE: ...http://www.osnews.com/thread?496683
http://www.osnews.com/thread?496683I live in the deluded hope that MS get nailed to the wall for this practice and bring down the whole patent troll game with them...
but then I also live in the deluded hope that some politicians work for the people they represent and don't get bribed so easily.Wed, 09 Nov 2011 16:46:00 GMTdonotreply@osnews.com (BushLin)CommentsRE[2]: ... - Guess we will see who has the best argumenhttp://www.osnews.com/thread?496686
http://www.osnews.com/thread?496686Sadly, the US has a legal system not a justice system. What we will see is who can afford the best lawyers not who has the best argument.Wed, 09 Nov 2011 17:06:00 GMTdonotreply@osnews.com (jabbotts)CommentsComment by LobalSurgeryhttp://www.osnews.com/thread?496689
http://www.osnews.com/thread?496689The DoJ will do exactly what we expect of them regarding the current (broken) US patent system:

Not a damn thing.Wed, 09 Nov 2011 17:25:00 GMTdonotreply@osnews.com (LobalSurgery)CommentsComment by shmerlhttp://www.osnews.com/thread?496690
http://www.osnews.com/thread?496690Great news. I have respect for B&N for their courage to do the right thing.

On a "completely" unrelated note, I just realized what I wish for xmas: a Nook Tablet and a Nook Simple Touch (I already have the rest).Wed, 09 Nov 2011 17:41:00 GMTdonotreply@osnews.com (fatjoe)Comments...http://www.osnews.com/thread?496698
http://www.osnews.com/thread?496698B&N throw out all doubt about their cluelessness when they mention anticompeteiveness. The entire point of a patent is an exclusive monopoly on an idea. Licensing patents is a luxury Microsoft afford B&N because it coincides ih their business model.

Th DoJ has an obligation to uphold the law, not decide it's validity. Whatever that law may be, regardless of any kind of morality.

Thy really have two options: Sue on the grounds of paten inalidity or on the grounds of unconstitutionality. Good luck with either of those.Wed, 09 Nov 2011 17:55:00 GMTdonotreply@osnews.com (Nelson)CommentsThe Slides From B&amp;Nhttp://www.osnews.com/thread?496699
http://www.osnews.com/thread?496699http://www.geekwire.com/2011/barnes-nobles-29page-slide-deck-calls-...Wed, 09 Nov 2011 17:57:00 GMTdonotreply@osnews.com (bjossir)CommentsRE: ...http://www.osnews.com/thread?496703
http://www.osnews.com/thread?496703

B&amp;N throw out all doubt about their cluelessness when they mention anticompeteiveness. The entire point of a patent is an exclusive monopoly on an idea. Licensing patents is a luxury Microsoft afford B&amp;N because it coincides ih their business model.

Th DoJ has an obligation to uphold the law, not decide it's validity. Whatever that law may be, regardless of any kind of morality.

Thy really have two options: Sue on the grounds of patent invalidity or on the grounds of unconstitutionality. Good luck with either of those.

B&N is claiming Microsoft is breaking the Sherman Act and potentially RICO. They are not saying all patents are invalid, or anything of that short.

That said, while one may be granted a patent there are limits to what one can do with a patent. Infringement, for example, is also linked to how key the patent is to the infringing device - if it is trivial then the cost for licensing the technology is required to be equally trivial in comparison to the sale of the infringing device - B&N is showing that Microsoft is not doing so, thereby it is guilty of patent misuse, and its tactics in the whole scheme are violations of the Sherman Act (Antitrust) and possibly RICO (racketeering, though its not mentioned).Wed, 09 Nov 2011 18:13:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE: ...http://www.osnews.com/thread?496705
http://www.osnews.com/thread?496705

It holds no water, not because MS is obviously abusing it, but because if MS loss the government would be admitting that the patent system is a broken fiasco, and they won't do that, and this is because billions have been spend in building patents arsenals from rich companies. What if suddenly software patents were abolished? then all that billions wasted would go direct down the drain.

So this case will end in an arrangement out of the court or Barnes &amp; Noble loses.

Has nothing to do with whether the entire patent system in broken. It has to do with what rights and restrictions the patent system gives to a patent owner.

In this case:
- Is Microsoft charging a non-trivial fee for a trivial patent? If so, it is patent abuse.
- Is Microsoft involved in anti-competitive tactics and in violation of the Sherman Act?

FYI - Microsoft has already been twice convicted of violating the Sherman Act and similar laws in Europe. If what B&N claims is true (which there seems to be substantial evidence to show) then they may be convicted yet again, having simply adopted tactics that are simply an evolution of the tactics they were previously convicted of.Wed, 09 Nov 2011 18:17:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE: Comment by LobalSurgeryhttp://www.osnews.com/thread?496706
http://www.osnews.com/thread?496706I heard Nook Tablet will have a limited EU release.

This story could maybe explains their decision to do so.Wed, 09 Nov 2011 18:23:00 GMTdonotreply@osnews.com (fatjoe)CommentsWhy not Applehttp://www.osnews.com/thread?496708
http://www.osnews.com/thread?496708Why not Apple they have been far worse lately about trying to kill the portable industry with patient buying and litigation.

My real hope is all this patient trolling by all the big names is a thump on the head that the whole patient system needs major reform. Too many patients for generic concepts. Patients and copyright should be shortened to five or ten years at most. If you can't come up with another patient-able idea that time, get a job like the rest of us.

How about patients and copyrights can only be owned by original creator they can not be sold, only licensed for use.Wed, 09 Nov 2011 18:32:00 GMTdonotreply@osnews.com (docbop)CommentsRE[2]: ...http://www.osnews.com/thread?496710
http://www.osnews.com/thread?496710That's even worse, because B&N would be admitting patent violations from Android, and that would useful for future litigations against Android from MS.Wed, 09 Nov 2011 18:37:00 GMTdonotreply@osnews.com (Hiev)CommentsRE[3]: ...http://www.osnews.com/thread?496712
http://www.osnews.com/thread?496712

That's even worse, because B&amp;N would be admitting patent violations from Android, and that would useful for future litigations against Android from MS.

They do not have to admit patent violations to make the charges they are charging. They only have to show that Microsoft is doing things they shouldn't be with the patents.

And of course, they also claim no infringing activity, but then, they also show that Microsoft is making it difficult for anyone to really figure out if they are infringing anything at all while they (Microsoft) is trying to coerce the party (e.g. B&N, etc) into a patent licensing deal, after which they may find they are not infringing any way but they have already signed an agreement to pay Microsoft some undisclosed amounts, again hidden by the NDA.Wed, 09 Nov 2011 18:40:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE[4]: ...http://www.osnews.com/thread?496713
http://www.osnews.com/thread?496713Oh, I think I'm beginning to understand, then, I do think they have a case.Wed, 09 Nov 2011 18:44:00 GMTdonotreply@osnews.com (Hiev)CommentsRE[3]: ... - Guess we will see who has the best argumenhttp://www.osnews.com/thread?496715
http://www.osnews.com/thread?496715Well, B&N have Cravath, Swaine & Moore. So I'd say they have a pretty good shot at winning even if they don't pay more than M$ does for legal representation. (o;)Wed, 09 Nov 2011 18:47:00 GMTdonotreply@osnews.com (glarepate)CommentsRE: ... &lt;nelson&gt; Ha, ha! &lt;/nelson&gt;http://www.osnews.com/thread?496716
http://www.osnews.com/thread?496716

The entire point of a patent is an exclusive monopoly on an idea.

You should get a patent on that idea!Wed, 09 Nov 2011 18:52:00 GMTdonotreply@osnews.com (glarepate)CommentsRE[3]: ...http://www.osnews.com/thread?496717
http://www.osnews.com/thread?496717

" The fact that they are suing for different licenses than they offered to license is one issue.

That's not an issue what-so-ever. If patent violations have occurred, that's the bottom line. "
No, that IS an issue. Maybe MS still has a valid case re: some patents - FINE. But if they are trolling for payments (affecting competition) for other stuff that isnÂ´t valid, that is behavior that may very well be sanctionable. Note that other vendors have succombed to these tactics, so it is already affecting the market.

The fact that they are charging more for the licenses than they are for their entire Windows Phone 7 is another.

They can charge however much they want. [/q]
If they are charging a radically higher fee for patents vs. what they charge for WP7 which includes those and much more, there is a case for non-competitive practices because that is obviously not a level playing field, but one where they are leveraging their advantage in one Â´marketÂ´ (patents) to advantage themselves in another market (OSÂ´s). It doesnÂ´t matter if the component actions might otherwise be legal, doing that is illegal... ESPECIALLY in the EU, even if they are using US patent law that can and obviously does affect competition within the EU.

It will be very interesting if this case goes forward, to see if the court subpoenas MS / other vendors to see what is the actual substance of what is being discussed behind NDA secrecy...Edited 2011-11-09 19:01 UTCWed, 09 Nov 2011 18:59:00 GMTdonotreply@osnews.com (mutantsushi)CommentsConsumer power!http://www.osnews.com/thread?496718
http://www.osnews.com/thread?496718I am buying a Nook today.

We need to support companies that show a backbone and are willing to stand up for fair business conditions and against the abuse that the patent system has become.

If thousands of us did the same and sent a note as to why to B&N, the folks there might feel a little bit more upbeat about doing the right thing, rather than turning over on their backs when Microsoft offers them the chance to walk away if they just sign another NDA saying that they are committed to respecting intellectual property.

No, the entire point is an implementation of an idea, not the idea itself.Wed, 09 Nov 2011 19:07:00 GMTdonotreply@osnews.com (Soulbender)CommentsRE: ...http://www.osnews.com/thread?496720
http://www.osnews.com/thread?496720Not every idea should be patentable in the first place. Software shouldn't.Wed, 09 Nov 2011 19:07:00 GMTdonotreply@osnews.com (shmerl)CommentsRE[4]: ...http://www.osnews.com/thread?496723
http://www.osnews.com/thread?496723They request same or more per device than for same license and their own OS combined, so it's worth investigating.
MS is not very careful given that they are proven monopolist abuser. However their stake is very low in the market so it's to early to call it monopolistic.

And anyway their tactic doesn't work for now. Android phones and the iPhone sell better because of the network effect, customer familiarity, apps, and more mature platform. That counts even in the commodity market where this fee is relevant in pricing structure (WP7 is strongly targeting that market). Maybe as Nokia helps them get to more than a few % they will be able to build up a kind of ecosystem that iOS and Android have, but maybe also there's no room for another smartphone OS. Consumers will decide about it.Wed, 09 Nov 2011 19:29:00 GMTdonotreply@osnews.com (siki_miki)CommentsRE: Consumer power!http://www.osnews.com/thread?496726
http://www.osnews.com/thread?496726If I had a big enough wallet I would...guess this is the problem with consumer "power".Wed, 09 Nov 2011 20:03:00 GMTdonotreply@osnews.com (magni)CommentsRE[2]: ...http://www.osnews.com/thread?496739
http://www.osnews.com/thread?496739

Hopefully you are wrong. I think B&amp;N have a case. They are using their patents punitively to hold back Android. The fact that they are suing for different licenses than they offered to license is one issue. The fact that they are charging more for the licenses than they are for their entire Windows Phone 7 is another. Guess we will see who has the best argument.

It doesn't matter whether MS is "using their patents punitively to hold back Android." That's the nature of patents. They grant the holder an exclusive monopoly on a particular invention for a limited period of time, in exchange for making the invention public.Wed, 09 Nov 2011 22:02:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[4]: ...http://www.osnews.com/thread?496740
http://www.osnews.com/thread?496740

No, that IS an issue. Maybe MS still has a valid case re: some patents - FINE. But if they are trolling for payments (affecting competition) for other stuff that isnÂ´t valid, that is behavior that may very well be sanctionable. Note that other vendors have succombed to these tactics, so it is already affecting the market.

But there's zero evidence that that's occurred. What we do know is that MS has asked Android adopters like B&N to license its patents -- and B&N apparently believes that it isn't obligated to do so. Which is fine. They can take their chances in court. But merely asserting that they don't like patents -- or that patents are anti-competitive -- is a losing argument. That's the nature of patents. They restrict competition by granting the holder a monopoly on the invention. Anybody who wants to use the invention has to license it. That's our system. My bet is that B&N settles this out of court -- or they'll get their asses handed to them.Wed, 09 Nov 2011 22:07:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[3]: ...http://www.osnews.com/thread?496743
http://www.osnews.com/thread?496743And thats why MS put those patent licenses behind NDA?

For me patent agreements with NDA should be baned, to fulfil "for releasing the to public knowledge". But that not the biggest USA patent system. (And I think that ANY patent system is by definition pile of lies, misunderstandings, and wishful thinking, all bad things you very, very do NOT want in your legal system).Wed, 09 Nov 2011 22:11:00 GMTdonotreply@osnews.com (przemo_li)CommentsRE: Comment by shmerlhttp://www.osnews.com/thread?496745
http://www.osnews.com/thread?496745

Great news. I have respect for B&N for their courage to do the right thing.

Why is refusing to license patents "the right thing"? I know it's "the preferable thing." But unless the patent system changes -- and that's doubtful -- B&N could be making a really, really bad/costly business decision. And for what? Principle? No, I don't think that's what's going on here. What B&N is doing here is negotiating for more favorable licensing terms.Wed, 09 Nov 2011 22:14:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[4]: ...http://www.osnews.com/thread?496747
http://www.osnews.com/thread?496747

And thats why MS put those patent licenses behind NDA?

For me patent agreements with NDA should be baned, to fulfil "for releasing the to public knowledge". But that not the biggest USA patent system. (And I think that ANY patent system is by definition pile of lies, misunderstandings, and wishful thinking, all bad things you very, very do NOT want in your legal system).

I'm not sure how that matters. The licensee knows the patents it's getting rights to, and it knows how much it's paying. I think what you're really complaining about is that YOU don't know the details; but you're not a party to the agreement.Wed, 09 Nov 2011 22:20:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[2]: ...http://www.osnews.com/thread?496748
http://www.osnews.com/thread?496748

In this case:
- Is Microsoft charging a non-trivial fee for a trivial patent? If so, it is patent abuse.

That is precisely the role of the court to decide. B&N has the right to raise that issue, and I'm sure that it will be addressed, if it ever gets that far.

- Is Microsoft involved in anti-competitive tactics and in violation of the Sherman Act?

It's hard to see how the Sherman Act is, in any way, involved in this case. MS does not hold a monopoly on phone operating systems. If anything, it could be argued that having the market leader (Android) license patents from a company (MS) that holds less than 10% of the market is actually good for competition.Wed, 09 Nov 2011 22:24:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[3]: ...http://www.osnews.com/thread?496749
http://www.osnews.com/thread?496749

"Hopefully you are wrong. I think B&N have a case. They are using their patents punitively to hold back Android. The fact that they are suing for different licenses than they offered to license is one issue. The fact that they are charging more for the licenses than they are for their entire Windows Phone 7 is another. Guess we will see who has the best argument.

It doesn't matter whether MS is "using their patents punitively to hold back Android." That's the nature of patents. They grant the holder an exclusive monopoly on a particular invention for a limited period of time, in exchange for making the invention public. "

B&N allege that Microsoft's patent claims are trivial and non-essential, and Microsoft are abusing them by charging as much or more for trivial & non-essential patents than they do for their entire WP7 OS.

So, even if this were true that patents "grant the holder an exclusive monopoly on a particular invention for a limited period of time", Microsoft have apparently still abused the patents in question because thay are non-essential to Android. If Android doesn't need them, then Microsoft should at best be able to get these non-essential elements taken out of Android. Microsoft should not be able to use trivial, non-essential patents to eliminate competition.

Finally, if patents are indeed awarded "in exchange for making the invention public", then Microsoft's NDA's and obfuscation of the alleged functional infringements (so that they could be removed from Android if required to be) are a clear abrogation of that bargain. On this basis alone Microsoft's patent troll behaviour should be heavily sanctioned.Edited 2011-11-09 22:28 UTCWed, 09 Nov 2011 22:26:00 GMTdonotreply@osnews.com (lemur2)Commentsthe solutionhttp://www.osnews.com/thread?496752
http://www.osnews.com/thread?496752The solution is a mandatory patent pool covering all manufacturers.Wed, 09 Nov 2011 22:33:00 GMTdonotreply@osnews.com (unclefester)CommentsRE[5]: ...http://www.osnews.com/thread?496754
http://www.osnews.com/thread?496754

"And thats why MS put those patent licenses behind NDA? For me patent agreements with NDA should be baned, to fulfil "for releasing the to public knowledge". But that not the biggest USA patent system. (And I think that ANY patent system is by definition pile of lies, misunderstandings, and wishful thinking, all bad things you very, very do NOT want in your legal system).

I'm not sure how that matters. The licensee knows the patents it's getting rights to, and it knows how much it's paying. I think what you're really complaining about is that YOU don't know the details; but you're not a party to the agreement. "

No. Firstly one is awarded a patent as a "deal" ... one is awarded the patent rights in the first place in exchange for making the invention known to the public. NDAs break that deal, and should logically result in the loss of the patent.

Secondly, the patents in question are said to be trivial and non-essential. In any "deal" there needs to be agreement between the parties. Therefore, B&N should have two options ... either license the patents from Microsoft for use in their Android devices, or remove the disputed functionality from their Android devices.

Since the patents in question are said to be trivial and non-essential, surely B&N would opt for the latter option ... just remove the contentious functions from their device. I'm sure Google would co-operate in a blink, and replace the contested functions with some entirely different implementation of the same desired effect.

So why can't they? Why can't this be done?

If the answer is that "Microsoft won't disclose what the contested functions are", then it is absolutely clear that Microsoft has not disclosed their patents to the public knowledge. So Microsoft should lose the patents.Edited 2011-11-09 22:39 UTCWed, 09 Nov 2011 22:37:00 GMTdonotreply@osnews.com (lemur2)CommentsRE[6]: ...http://www.osnews.com/thread?496755
http://www.osnews.com/thread?496755

NDAs break that deal, and should logically result in the loss of the patent.

You're confused. The NDA is a separate contract specifying license terms. It is not the patent, and there are very valid reasons why a company signs NDAs. It allows the company to negotiate different terms from different companies. If you think that contract law is going to be modified because you want to know the terms, I have a nice bridge for sale.Wed, 09 Nov 2011 22:45:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[2]: Comment by shmerlhttp://www.osnews.com/thread?496756
http://www.osnews.com/thread?496756

"Great news. I have respect for B&amp;N for their courage to do the right thing.

Why is refusing to license patents "the right thing"? I know it's "the preferable thing." But unless the patent system changes -- and that's doubtful -- B&amp;N could be making a really, really bad/costly business decision. And for what? Principle? No, I don't think that's what's going on here. What B&amp;N is doing here is negotiating for more favorable licensing terms. "

Why don't B&N simply have the option to remove/replace the trivial & non-essential functions that Microsoft is alleging are infringements of Microsoft's patents?

You know, take out trivial & non-essentioal algortihm X, and perhaps replace it with algorithm Y that does an equivalent function in an entirely different way.

Then B&N (and all other Android devices) won't infringe on Microsoft's preciousssssss^W IP.

Since the patents in question are said to be trivial and non-essential, surely B&N would opt for the latter option ... just remove the contentious functions from their device. I'm sure Google would co-operate in a blink, and replace the contested functions with some entirely different implementation of the same desired effect.

It's not a question of "can" versus "can't". B&N wants the functionality, but it doesn't want to license the patents. Ergo, it wants its cake and eat it, too.

If the answer is that "Microsoft won't disclose what the contested functions are", then it is absolutely clear that Microsoft has not disclosed their patents to the public knowledge. So Microsoft should lose the patents.

"NDAs break that deal, and should logically result in the loss of the patent.

You're confused. The NDA is a separate contract specifying license terms. It is not the patent, and there are very valid reasons why a company signs NDAs. It allows the company to negotiate different terms from different companies. If you think that contract law is going to be modified because you want to know the terms, I have a nice bridge for sale. "

Nope. In order to enjoy patent rights, Microsoft are required to disclose their "invention". Fully. To the public.

If Microsoft did that, then clearly Android would not include anything which violated those patents. It would be ripped out by Google in a microsecond, and replaced with an entirely different implementation of equivalent function(s).

This the patent deal. If B&N are happy to license stuff from Microsoft, then they should be allowed to. Sweet. Microsoft might be able to get this business by offering B&N an attractive price.

If Microsoft's inventions are too expensive to license, and the terms are too restrictive, then B&N should have the option to go elsewhere and include other, competing stuff from another vendor that works in a different way to implement the same desired effects. To facilitate this, Microsoft should make it perfectly crystal clear, to the entire public, exactly what they think they have claims over.

This is the very essence of a free market economy.

I thought you would be in favour of a free market?Edited 2011-11-09 22:57 UTCWed, 09 Nov 2011 22:56:00 GMTdonotreply@osnews.com (lemur2)CommentsRE[4]: Comment by shmerlhttp://www.osnews.com/thread?496760
http://www.osnews.com/thread?496760

"Easy peasy. Let's do it, hey!

B&N certainly has that option. But it's my bet that they settle the case before this ever reaches court. "

The essence of B&N's case is that Microsoft doesn't give them that option.

You know, take out trivial & non-essentioal algortihm X, and perhaps replace it with algorithm Y that does an equivalent function in an entirely different way.

Car analogy: almost the equivalent of a car maker being allowed to choose between either NKG or Autolite spark plugs, except in the B&N case B&N allege that the bits Microsoft are suing over are trivial and not essential, not as important even as spark plugs, and Microsoft are asking for the entire price of the car.

The word "racketeering" comes to mind.

http://en.wikipedia.org/wiki/RacketeeringEdited 2011-11-09 23:06 UTCWed, 09 Nov 2011 23:04:00 GMTdonotreply@osnews.com (lemur2)CommentsRE[3]: Comment by shmerlhttp://www.osnews.com/thread?496761
http://www.osnews.com/thread?496761Isn't it obvious? Replace one bogus patent claim, MS will produce new ones. But really I think B&N does it out of principle more than out of necessity. Normal companies don't agree with unethical methods and prefer to fight them which is the right thing to do.Wed, 09 Nov 2011 23:04:00 GMTdonotreply@osnews.com (shmerl)CommentsComment by snorkel2http://www.osnews.com/thread?496764
http://www.osnews.com/thread?496764MS is out of line, I could see them maybe charging a couple of bucks, but from what I read they charge 15 which is almost the same cost as a windows phone 7 license. It really is extortion.
Tony Soprano would be proud......Wed, 09 Nov 2011 23:39:00 GMTdonotreply@osnews.com (snorkel2)CommentsRE[3]: ...http://www.osnews.com/thread?496771
http://www.osnews.com/thread?496771

"
In this case:
- Is Microsoft charging a non-trivial fee for a trivial patent? If so, it is patent abuse.

That is precisely the role of the court to decide. B&amp;N has the right to raise that issue, and I'm sure that it will be addressed, if it ever gets that far. "

Yes, exactly. However, DoJ also oversees prosecuting anti-trust so while it may get resolved in Microsoft v. B&N, they are raising it as a wider issue saying that DoJ needs to look at the behavior to see if there is something more going on than simply this single case, which from what you can find on-line (e.g. Groklaw, etc) seems to be sufficiently justified.

"- Is Microsoft involved in anti-competitive tactics and in violation of the Sherman Act?

It's hard to see how the Sherman Act is, in any way, involved in this case. MS does not hold a monopoly on phone operating systems. If anything, it could be argued that having the market leader (Android) license patents from a company (MS) that holds less than 10% of the market is actually good for competition. "

The issue is whether Microsoft is trying to leverage patents in the mobile space (where it doesn't have much market share) to protect its desktop space (where it does). In other words, are they trying to maintain their monopoly in the desktop space illegally by how they act in the mobile space, pressuring companies to use their software and trying to leverage their desktop monopoly to gain another monopoly in the mobile space, again illegally. That is where the Sherman Act comes into play.Thu, 10 Nov 2011 00:10:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE: Comment by snorkel2http://www.osnews.com/thread?496778
http://www.osnews.com/thread?496778

Tony Soprano would be proud......

Exactly!

I commented on MS's mafia-esque patent trolling behaviour in a previous post (for another article) and was told that this is "just business." That reply didn't sit well with me then and it still doesn't now.

Hats off to Barnes & Noble. You did the right thing! Let's hope the DOJ can actually do something about it.Thu, 10 Nov 2011 01:41:00 GMTdonotreply@osnews.com (Dr.Mabuse)CommentsRE[5]: Comment by shmerlhttp://www.osnews.com/thread?496780
http://www.osnews.com/thread?496780

The essence of B&N's case is that Microsoft doesn't give them that option.

You're getting suckered by lawyers. B&N may want to license certain "trivial" patents -- because they want the functionality, but MS is probably giving them the same price, regardless of the subset. That is MS's right as a patent holder.

This is not an antitrust issue. MS doesn't have a monopoly in phone operating systems. Android is the market leader and, therefore, B&N is really barking up the wrong tree here; B&N won't get any traction with a antitrust complaint because this is a patent infringement case -- and that's a matter for the courts to decide.Thu, 10 Nov 2011 02:10:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[6]: Comment by shmerlhttp://www.osnews.com/thread?496792
http://www.osnews.com/thread?496792Actually, B&N do have a case. They are arguing not that Microsoft has a monopoly in the mobile market, but that they are using their monopoly in the OS market to stifle a competitor, Android. Android isn't just a phone OS, its also a tablet OS. Tablets will be outselling laptops soon. Now we begin to see the big picture. Microsoft has nothing in the tablet market right now. So they are trying to stifle the market as much as possible.

The fact that many other companies have gone along with MIcrosoft instead of going to court is irrelevant.Thu, 10 Nov 2011 03:49:00 GMTdonotreply@osnews.com (TechGeek)CommentsRE[6]: Comment by shmerlhttp://www.osnews.com/thread?496793
http://www.osnews.com/thread?496793

"The essence of B&amp;N's case is that Microsoft doesn't give them that option.

You're getting suckered by lawyers. B&amp;N may want to license certain "trivial" patents -- because they want the functionality, but MS is probably giving them the same price, regardless of the subset. That is MS's right as a patent holder. "

Car analogy: this is almost the equivalent of a car maker being allowed to choose between either NKG or Autolite spark plugs, except in the B&N case B&N allege that the bits Microsoft are suing over are trivial and not essential, not as important even as spark plugs, and Microsoft are asking for the entire price of the car.

Market failure. Microsoft are supposed to offer B&N an attractive price for a license to use Microst's patented algorithm, lest B&N decide that other options are better and decide to use an alternative, different algorithm from another software vendor for the same purpose. At least, that is how it is supposed to work. New, patentable inventions are supposed to be more attractive, and worth licensing over standard ways of doing things.

This is not an antitrust issue. MS doesn't have a monopoly in phone operating systems. Android is the market leader and, therefore, B&amp;N is really barking up the wrong tree here; B&amp;N won't get any traction with a antitrust complaint because this is a patent infringement case -- and that's a matter for the courts to decide.

Microsoft's Windows Phone president Andy Lees at the Worldwide Partners Conference once again tried to shoot down hopes for tablets based on Windows Phone 7. The use of the mobile OS would be "in conflict" with Microsoft's notion of having the full speed of a computer in any design, including truly mobile tablets. He insisted that users would want to do PC-style activities on a tablet and saw Windows 8's networking and printing support as being important.

"We view a tablet as a PC," Lees said.

Microsoft has an effective monopoly in PC operating systems.

B&N's case is that Microsoft is trying to preserve that monopoly by preventing alternative OSes from competing fairly.

On the face of it, B&N have a very good case.Thu, 10 Nov 2011 06:08:00 GMTdonotreply@osnews.com (lemur2)CommentsRE: Why not Applehttp://www.osnews.com/thread?496798
http://www.osnews.com/thread?496798

Why not Apple they have been far worse lately about trying to kill the portable industry with patient buying and litigation.

Apple have patented rectangles, so suing them using pieces of paper would be a lost case Thu, 10 Nov 2011 06:49:00 GMTdonotreply@osnews.com (Neolander)CommentsRE[4]: Comment by shmerlhttp://www.osnews.com/thread?496802
http://www.osnews.com/thread?496802

Normal companies don't agree with unethical methods and prefer to fight them which is the right thing to do.

Not really, normal companies do what they think will maximise their profit. If they think that agreeing with an unethical methods and pay is the less expensive choice, it is the one they will follow (hence amazon and others paying the license). My guess is that B&N being a traditional retailer, rather than a tech company, their management have limited experience with the patents system (unlike amazon and others who are tech companies), and their lawyers considered they would make more money with a trial than with paying a license, and as a normal company, they advised B&N to fight back.Thu, 10 Nov 2011 08:54:00 GMTdonotreply@osnews.com (cyrilleberger)CommentsRE: Why not Applehttp://www.osnews.com/thread?496803
http://www.osnews.com/thread?496803Maybe because Apple is not suing B&N.Thu, 10 Nov 2011 08:56:00 GMTdonotreply@osnews.com (cyrilleberger)CommentsVery sad, but...http://www.osnews.com/thread?496807
http://www.osnews.com/thread?496807..."This is a court of law, young man, not a court of justice."

~Oliver Wendell Holmes, Jr.

(http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr.)Thu, 10 Nov 2011 12:08:00 GMTdonotreply@osnews.com (isaba)CommentsOut of curiosityhttp://www.osnews.com/thread?496815
http://www.osnews.com/thread?496815Out of curiosity, is there any patent action that Thom would not refer to as "trolling"? Because the more common use tends to involve companies that hoard patents they don't use and haven't invented to sue companies that are too small to actually defend themselves in court safely. In this case it certainly seems that B&N are perfectly capable of defending themselves, and the patents are certainly at least to some part things that Microsoft did invent and use (the FAT32 patents being one that is often brought up).

The patent system certainly does not work well today, but the way the laws work sure seem to suggest that the FAT32 patents (long/short-filename resolution etc.) are perfectly valid under those laws, and part of the system working as intended. The FAT32 patents are not even so wide as to cover everything (after all, what other filesystem does the short/long-name thing at all?), but make it impossible to implement FAT32 without them. As it happens Android ships with FAT32 support, and widely uses it as part of its core functionality, in the form of the filesystem used on the SD cards it uses for storage.

So, Microsoft did invent FAT32 as it is, they do hold rights to the way it functions. They did nothing to make Google use FAT32 extensively in Android, and Android needing a license for FAT32 seems to square perfectly well with current (flawed) law. Google could easily have used ext2-formatted SD cards instead with only a minor loss of interoperability. On the other end of things Microsoft is constantly forced to pay for licenses for tons of random patents, and it is certainly their responsibility towards their shareholders to do the same since it can be a significant revenue stream. In short, the system needs to change, because Microsoft is acting correctly within it and has little choice to do anything else.Thu, 10 Nov 2011 13:08:00 GMTdonotreply@osnews.com (vaette)CommentsIssue: Illegally enhancing the bottom linehttp://www.osnews.com/thread?496817
http://www.osnews.com/thread?496817

That's not an issue what-so-ever. If patent violations have occurred, that's the bottom line.

Barnes & Noble is keen to showcase the patent-sharing arrangement between Nokia and Mosaid to support this accusation. Last month, Barnes & Noble subpoenaed both Nokia and Mosaid for a broad list of documents and information.

"The requested information will demonstrate that Microsoft is broadening its patent portfolio as part of its campaign to use minor patents to suppress competition from Android and protect its monopoly in PC operating systems," Barnes & Noble's lawyers wrote in documents filed with the USITC.Thu, 10 Nov 2011 14:23:00 GMTdonotreply@osnews.com (glarepate)CommentsRE: Out of curiosityhttp://www.osnews.com/thread?496818
http://www.osnews.com/thread?496818This isn't about the patents that they hold or don't hold. There are several charges that B&N and suing over. First, when they were informed by Microsoft that they were infringing, Microsoft refused to tell them what patents they infringed without an NDA. I wouldn't be surprised if that NDA had all sorts of clauses in it to make B&N pay no matter what they did after that point. Second, when filing the lawsuit, Microsoft sued over almost completely different patents than those they originally told B&N about. Third, they are charging an absurd amount of money for these patents versus what they are charging for WinMob 7. This is anticompetitive behavior by a monopoly.Thu, 10 Nov 2011 14:45:00 GMTdonotreply@osnews.com (TechGeek)CommentsRE[2]: Out of curiosityhttp://www.osnews.com/thread?496819
http://www.osnews.com/thread?496819Microsoft is not a monopoly in mobile, nor does this in any way leverage their desktop PC monopoly. Also the system is such that you can charge whatever you want for licenses. This is one of the aspects I agree with in the system, whatever level of patent protection we should have it should certainly be such that the holder of the patents can accept or refuse any deal for licenses. In much the same way it is certainly perfectly all-right for Microsoft to sue over whatever patents they want, independent of any discussions they have had beforehand. Discussing some patents with B&N simply cannot mean that Microsoft is barred from enforcing all other patents they have, such a setup would just be bizarre.

The NDA thing is a good point though, all around pretty iffy. I am not that convinced that it is legally problematic within the current system however, so it may again a question of the system needing to change, rather than there being anything wrong with this situation within the current system. Not nearly as certain there though.Thu, 10 Nov 2011 15:16:00 GMTdonotreply@osnews.com (vaette)CommentsRE[5]: Comment by shmerlhttp://www.osnews.com/thread?496831
http://www.osnews.com/thread?496831May be, but in the end they stand out like the only one having wits and courage to give MS bullies a solid kick back.Thu, 10 Nov 2011 16:22:00 GMTdonotreply@osnews.com (shmerl)CommentsRE: Comment by LobalSurgeryhttp://www.osnews.com/thread?496854
http://www.osnews.com/thread?496854

The DoJ will do exactly what we expect of them regarding the current (broken) US patent system:

Not a damn thing.

DoJ could probably learn a few things from the EU. They seem to know how to deal with Microsoft.Thu, 10 Nov 2011 19:19:00 GMTdonotreply@osnews.com (Stephen!)CommentsRE[8]: ...http://www.osnews.com/thread?496855
http://www.osnews.com/thread?496855

"[q]NDAs break that deal, and should logically result in the loss of the patent.

You're confused. The NDA is a separate contract specifying license terms. It is not the patent, and there are very valid reasons why a company signs NDAs. It allows the company to negotiate different terms from different companies. If you think that contract law is going to be modified because you want to know the terms, I have a nice bridge for sale. "

Nope. In order to enjoy patent rights, Microsoft are required to disclose their "invention". Fully. To the public. [/q]

They did disclose their invention, in the patent filing. However, they are under no obligation to tell you which patents they think B&N are infringing on.Thu, 10 Nov 2011 19:24:00 GMTdonotreply@osnews.com (rhavyn)CommentsRE[7]: ...http://www.osnews.com/thread?496857
http://www.osnews.com/thread?496857

"Since the patents in question are said to be trivial and non-essential, surely B&amp;N would opt for the latter option ... just remove the contentious functions from their device. I'm sure Google would co-operate in a blink, and replace the contested functions with some entirely different implementation of the same desired effect.

No, most have not. It might be getting closer to 50%, but it's mostly been dealers that don't care to fight Microsoft or think it's useless to do so. Again, B&N is standing up and saying "Hey, wait a minute. There's a problem here".

They're also saying that Microsoft won't disclose any infringement activity without an NDA in place, thereby you can't figure out what is infringing and resolve it or if they tell you you can't prevent others from doing so since the NDA prevents disclosure to 3rd parties.

"So why can't they? Why can't this be done?

It's not a question of "can" versus "can't". B&amp;N wants the functionality, but it doesn't want to license the patents. Ergo, it wants its cake and eat it, too. "

And you've completely missed the point.

B&N is claiming that Microsoft first approached them about 6 patents, but wouldn't tell them which patents without an NDA - which B&N refused since the patents themselves are public and Android OS is public so Microsoft should be able to tell them without an NDA - unless Microsoft's goal is to extort in which case the fewer that know which patents Microsoft wants to use the better since an NDA prevents parties from talking to each other to resolve the infringing activities, but that leads to what B&N is saying to the DoJ.

When B&N refused the NDA, Microsoft later came back and they agreed to a narrower NDA; B&N then said "that's trivial stuff and you're charging too much". Microsoft sued, but then only included one of the patents that they told B&N they were infringing, and added 9 others to the list that they had not previously disclosed to B&N. Again, that's a problem as Microsoft was not being forthright with B&N about the infringing activities if indeed B&N was infringing.

"If the answer is that "Microsoft won't disclose what the contested functions are", then it is absolutely clear that Microsoft has not disclosed their patents to the public knowledge. So Microsoft should lose the patents.

That simply isn't credible. You wouldn't be seeing the wave of Android licensees signing patent license deals, if the patents weren't being disclosed. "

There's two issues here:

1. Microsoft has disclosed the patents sufficiently to get the USPTO to issue a patent. However,...

2. Software Patents are so generalized that they are useless in describing the originally patented invention and apply to stuff that should not be covered by the patent.

For example, the following claims:

1. A cylindrical object consisting of two components heretofore referred to as component A and component B that share a common width and share a seal where the two components connect to each other such that component A surrounds the one side of component B which is contained inside component A on the same plane.
2. An invention of claim 1 where component A touches a surface upon which it traverses.
3. An invention of claim 2 where component B attached to object C via a cantilever assembly.
4. The combination of two or more inventions of claim 3 attached to the same object C in order to keep object C from touching the surface aforementioned in Claim 2.
5. An invention of claim 4 where a component D is used to propel object C across the surface of Claim 2 whilst only touching the surface through the invention of claim 1.

The above describes the invention of the rimmed tire. however, it would equally apply to cars, trucks, motorcycles, bicycles, etc - regardless of whether the rim was made of metal, polycarbonate, rubber, etc; regardless of whether the tire was tubed or tubeless or made of metal, polycarbonate, etc.

It would also be struck down as invalid against the invention as a result; yet that is exactly how we allow software patents and business method patents to be written.Thu, 10 Nov 2011 19:36:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE: Out of curiosityhttp://www.osnews.com/thread?496861
http://www.osnews.com/thread?496861I'd call any offensive software patents usage as trolling.Thu, 10 Nov 2011 20:26:00 GMTdonotreply@osnews.com (shmerl)CommentsRE[3]: Out of curiosityhttp://www.osnews.com/thread?496863
http://www.osnews.com/thread?496863"Within the current system" doesn't mean there is nothing wrong with it. Abusing deficient system is bad too.Thu, 10 Nov 2011 20:41:00 GMTdonotreply@osnews.com (shmerl)CommentsRE[7]: Comment by shmerlhttp://www.osnews.com/thread?496878
http://www.osnews.com/thread?496878

Actually, B&N do have a case. They are arguing not that Microsoft has a monopoly in the mobile market, but that they are using their monopoly in the OS market to stifle a competitor, Android.

Car analogy: this is almost the equivalent of a car maker being allowed to choose between either NKG or Autolite spark plugs, except in the B&N case B&N allege that the bits Microsoft are suing over are trivial and not essential, not as important even as spark plugs, and Microsoft are asking for the entire price of the car.

That's too bad. Microsoft owns the patents. It gets to decide whether to license -- or how much to charge. That's the way our system works. And, obviously, B&N and Google are pissed off about it. The courts have already ruled that MS gets to keep and exercise its IP, even if it has a monopoly.

Market failure. Microsoft are supposed to offer B&N an attractive price for a license to use Microst's patented algorithm, lest B&N decide that other options are better and decide to use an alternative, different algorithm from another software vendor for the same purpose. At least, that is how it is supposed to work. New, patentable inventions are supposed to be more attractive, and worth licensing over standard ways of doing things

MS is under no obligation to license its patents. It could force B&N to stop infringing by withdrawing its products. Licensing is probably the less expensive option.

Android is an OS used on phones and tablets.

Microsoft's own PR is that a tablet is a PC.

Nice try. But, unfortunately for your argument, antitrust requires definition of the relevant market. The courts have said that MS has a monopoly on operating systems for x86-based processors. Not ARM. Not RISC. Not MIPS. Not Cray. Not random tablet hardware.

No, most have not. It might be getting closer to 50%, but it's mostly been dealers that don't care to fight Microsoft or think it's useless to do so. Again, B&N is standing up and saying "Hey, wait a minute. There's a problem here".

It's actually over 50% now. And if you think they're going to piss away revenue like that without cause, you're dreaming.

They're also saying that Microsoft won't disclose any infringement activity without an NDA in place, thereby you can't figure out what is infringing and resolve it or if they tell you you can't prevent others from doing so since the NDA prevents disclosure to 3rd parties.

Tripe. Signing the NDA doesn't prevent you from determining whether you're infringing. It merely prevents you from disclosing the terms of the license with others. Which is the patent holder's right.Edited 2011-11-10 22:10 UTCThu, 10 Nov 2011 22:09:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[9]: ...http://www.osnews.com/thread?496907
http://www.osnews.com/thread?496907

"No, most have not. It might be getting closer to 50%, but it's mostly been dealers that don't care to fight Microsoft or think it's useless to do so. Again, B&amp;N is standing up and saying "Hey, wait a minute. There's a problem here".

It's actually over 50% now. And if you think they're going to piss away revenue like that without cause, you're dreaming. "

Regardless, the revenue is only good if there is actual infringement occurring. And infringement can only lead to injunction if there is more than trivial matters involved. That is, infringing a patent that adds trivial detail cannot induce an injunction or get a court to shutdown a product. It will also only result in a similarly trivial revenue.

What Microsoft is doing, however, is using a few trivial patents (that even in sum only add up to a trivial infringement if there is any infringement at all) to extort a non-trivial price. (More below.)

"They're also saying that Microsoft won't disclose any infringement activity without an NDA in place, thereby you can't figure out what is infringing and resolve it or if they tell you you can't prevent others from doing so since the NDA prevents disclosure to 3rd parties.

Tripe. Signing the NDA doesn't prevent you from determining whether you're infringing. It merely prevents you from disclosing the terms of the license with others. Which is the patent holder's right. "

Here's the problem:

If you do the determination yourself from the public information then yes, you can make a determination about infringement, disclose it to others, etc. regardless of the NDA, patent, etc.

However, in this case, Microsoft is saying they won't tell you what you are infringing unless you sign an NDA first. This is like telling you that you own me $500 million dollars but not telling you what for unless you sign an NDA, after which you may come back and say that you really only owe me $5 but since you can't make a determination you have little or no choice.

The problem is that patent holders are not allowed to do that kind of thing when claiming infringement. If they are claiming that you infringe, they have to tell you what you are infringing, lose the right to enforce it, or they are liable under patent abuse - which is exactly what B&N is reporting.

Yes, Patent holders have certain rights - the right to license (for free or otherwise) the patent to others. However, those rights are limited:
- if they don't enforce the licensing they lose the patent
- if they don't get people who are infringing it to resolve the infringement or license the patent, they lose it.
- if they abuse the patent, they lose the right to enforce it (and thereby lose the patent).

But as noted, if they want to get you to resolve your infringement or license the patent then they have to tell you what you are doing wrong - what you are infringing, which patent, etc. If they don't, then you are under no obligation to resolve the infringement. If they do, then you are - and then you can become willfully infringing it if you continue.

What Microsoft is doing is patent abuse because they are not trying to stop the infringement in a public product as they should be; they are instead trying to hustle (read RICO violation) everyone individually into paying them more than the patents are worth and operate on FUD that there may be infringement but not tell anyone what it is. Their activity is nearly by definition patent abuse and B&N is calling them on.Thu, 10 Nov 2011 23:40:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE[10]: ...http://www.osnews.com/thread?496922
http://www.osnews.com/thread?496922

The problem is that patent holders are not allowed to do that kind of thing when claiming infringement. If they are claiming that you infringe, they have to tell you what you are infringing, lose the right to enforce it, or they are liable under patent abuse - which is exactly what B&amp;N is reporting.

It's not clear why you keep harping on the NDA. It's irrelevant. Microsoft and B&N already signed a NDA. The NDA isn't the issue.

Yes, Patent holders have certain rights - the right to license (for free or otherwise) the patent to others. However, those rights are limited:
- if they don't enforce the licensing they lose the patent

Does not apply here. MS is clearly enforcing their patents.

- if they don't get people who are infringing it to resolve the infringement or license the patent, they lose it.

Does not apply here. Clearly, there was notification of infringement, negotiations, and it's moved to litigation phase.

- if they abuse the patent, they lose the right to enforce it (and thereby lose the patent).

Patent misuse can be claimed in 3 conditions:

antitrust (does not apply here since MS holds no monopoly in the relevant market for phone operating systems)
improper scope (B&N claims these are trivial patents, but that is simply their opinion -- litigation will test that)
obtaining or enforcing the patent was bogus (no evidence of that here)

But as noted, if they want to get you to resolve your infringement or license the patent then they have to tell you what you are doing wrong - what you are infringing, which patent, etc. If they don't, then you are under no obligation to resolve the infringement. If they do, then you are - and then you can become willfully infringing it if you continue.

MS and B&N already negotiated and signed a NDA. That does not apply here.

What Microsoft is doing is patent abuse because they are not trying to stop the infringement in a public product as they should be; they are instead trying to hustle (read RICO violation) everyone individually into paying them more than the patents are worth and operate on FUD that there may be infringement but not tell anyone what it is. Their activity is nearly by definition patent abuse and B&amp;N is calling them on.

That's an interesting opinion but, at the end of the day, this case is no more or less interesting than any other patent infringement suit. The parties to the lawsuit know the infringing patents. They also know how much is being asked to license the patents. B&N obviously doesn't like the terms, and it's their right to refuse them. But I think that's a mistake.

B&N should be doing one of a few things.

1. STFU and license the patents.
2. Take their chances in court. And possibly whine to the DOJ. (their current plan of action)
3. Change the code to remove infringements.

If these patents are "trivial and non-essential design elements", then it stands to reason that they can be excised easily from their product with a trivial amount of effort. They can't argue that they're trivial while simultaneously claiming they can't remove dependencies on them. So, I call BS on B&N. The easiest course of action is 3. But they seem intent on forcing 2 because they think that the DOJ is going to save their asses. I wouldn't put money on that.Fri, 11 Nov 2011 02:13:00 GMTdonotreply@osnews.com (tomcat)CommentsOh please...http://www.osnews.com/thread?496940
http://www.osnews.com/thread?496940Microsoft is offering their patents for licensing for a fee. Apple is the one that uses their patents to take competing products off the market altogether, not even bothering to offer their patent for license.

Are you and the other Google apologists now saying that it's "anti-competitive" to offer one's patents for licensing? Come off of it.

And I don't care how many uprates your lame comment got by the other Google sycophants and/or MS bashers.

BTW, the DOJ isn't going to do anything about this; there's nothing illegal in offering your patents for license, even with the threat of a private suit at the end of it. There's no monopoly-abusing goign on here. B&N are still able to use Windows on their computers at the same price that anyone else can. WHere's the case of "anti-competitive" practice? There isn't one. B&N and MS are going to have a court case to settle their differences. That court case has already been scheduled. Why bring the DOJ into it? Probably because B&N thinks they'll lose the court case.Fri, 11 Nov 2011 09:34:00 GMTdonotreply@osnews.com (MollyC)CommentsI prefer &quot;FRAND&quot; patents.http://www.osnews.com/thread?496942
http://www.osnews.com/thread?496942"Fair, reasonable, and non-discriminatory" patents. Whereby the patent holder must license the underlying tech (rather than demand that particular products that use the tech be banned altogether) to everyone at the same terms, and the terms must be "reasonable".

"Reasonable" is the sticky point; I guess courts can decide whether offered terms are "reasonable" or whether they should be lowered.

But regardless of the terms, I do think patent holders should be required to license their tech, and license it to everyone, and offer everyone the same terms.Fri, 11 Nov 2011 09:59:00 GMTdonotreply@osnews.com (MollyC)CommentsRE[11]: ...http://www.osnews.com/thread?496961
http://www.osnews.com/thread?496961

"The problem is that patent holders are not allowed to do that kind of thing when claiming infringement. If they are claiming that you infringe, they have to tell you what you are infringing, lose the right to enforce it, or they are liable under patent abuse - which is exactly what B&amp;N is reporting.

It's not clear why you keep harping on the NDA. It's irrelevant. Microsoft and B&amp;N already signed a NDA. The NDA isn't the issue. "

It is with respect to their filing with the DoJ.

"Yes, Patent holders have certain rights - the right to license (for free or otherwise) the patent to others. However, those rights are limited:
- if they don't enforce the licensing they lose the patent

Does not apply here. MS is clearly enforcing their patents. "

True, but it also has to do with how they are enforcing them.

"- if they don't get people who are infringing it to resolve the infringement or license the patent, they lose it.

Does not apply here. Clearly, there was notification of infringement, negotiations, and it's moved to litigation phase. "

There was notification about 6 patents; and then a lawsuit on 1 of those patents and 9 others that were not notified about. In other words, Microsoft is not laying out all of what they believe is infringing or exchanging patents throughout the process to get their way as each is struck down. This is very costly for those that are being blamed of infringement and abuse on the patent holder's part - their obligation is to notify about ALL patents being infringed that they own as soon as they are aware of the infringement, not to continuously beat up the accused infringing party with round and round.

"- if they abuse the patent, they lose the right to enforce it (and thereby lose the patent).

Patent misuse can be claimed in 3 conditions:

antitrust (does not apply here since MS holds no monopoly in the relevant market for phone operating systems)
improper scope (B&amp;N claims these are trivial patents, but that is simply their opinion -- litigation will test that)
obtaining or enforcing the patent was bogus (no evidence of that here) "

It also applies to how they enforce it, which very well is the case here.

"But as noted, if they want to get you to resolve your infringement or license the patent then they have to tell you what you are doing wrong - what you are infringing, which patent, etc. If they don't, then you are under no obligation to resolve the infringement. If they do, then you are - and then you can become willfully infringing it if you continue.

MS and B&amp;N already negotiated and signed a NDA. That does not apply here. "

True, they did. But they are pointing out the kind of NDA MS is requiring when approaching parties - again, going to how Microsoft is enforcing the patents in an illegal manner - patent abuse.

"What Microsoft is doing is patent abuse because they are not trying to stop the infringement in a public product as they should be; they are instead trying to hustle (read RICO violation) everyone individually into paying them more than the patents are worth and operate on FUD that there may be infringement but not tell anyone what it is. Their activity is nearly by definition patent abuse and B&amp;N is calling them on.

That's an interesting opinion but, at the end of the day, this case is no more or less interesting than any other patent infringement suit. The parties to the lawsuit know the infringing patents. They also know how much is being asked to license the patents. B&amp;N obviously doesn't like the terms, and it's their right to refuse them. But I think that's a mistake. "

The main issue here (and the topic of TFA is B&N's submittal to DoJ about Microsoft abusing their patents and Microsoft using the Windows monopoly in the desktop market to try to take over the mobile market.

I do agree that the patent case otherwise is going to be very uneventful - most likely Microsoft will lose due to the triviality of the patents, though expect them to refile with a new set of patents when they do (again patent abuse).

B&amp;N should be doing one of a few things.

1. STFU and license the patents.

Only valid when the license fees match the utility of the patents. In this case, Microsoft's license fees to not - they're specifically designed to make Windows Phone 7/Windows Starter Edition cheaper than Android - e.g. protect the desktop monopoly (antitrust).

2. Take their chances in court. And possibly whine to the DOJ. (their current plan of action)

The correct course of action when someone is not trying to prevent infringement but extort the markets for other reasons, such as protecting or expanding an existing monopoly, which is what Microsoft is trying to do here.

3. Change the code to remove infringements.

If these patents are "trivial and non-essential design elements", then it stands to reason that they can be excised easily from their product with a trivial amount of effort. They can't argue that they're trivial while simultaneously claiming they can't remove dependencies on them. So, I call BS on B&amp;N. The easiest course of action is 3. But they seem intent on forcing 2 because they think that the DOJ is going to save their asses. I wouldn't put money on that.

You can only excise something that you have all the information about, and the way Microsoft is going about their patent enforcement is to NOT tell the parties anything that they can publicly share to help prevent infringement.

Now that is fine when you are talking about proprietary products - e.g. Windows, Solaris, etc.

However, it makes it very difficult to explain changes to a public OS - e.g. Linux, Android - when you can't say why the change has to happen, which if you can't do, you can't help prevent infringements which you ought to be able to do.Fri, 11 Nov 2011 14:50:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE[12]: ...http://www.osnews.com/thread?496994
http://www.osnews.com/thread?496994

The main issue here (and the topic of TFA is B&N's submittal to DoJ about Microsoft abusing their patents and Microsoft using the Windows monopoly in the desktop market to try to take over the mobile market

This complaint isn't going anywhere. It's not an antitrust case. MS has no monopoly power in mobile operating systems. The DOJ isn't an arbiter of supposed patent abuse. That's the role of the court. The DOJ might write an amicus brief, but that's about it. It's the court's role to decide the outcome.

I do agree that the patent case otherwise is going to be very uneventful - most likely Microsoft will lose due to the triviality of the patents, though expect them to refile with a new set of patents when they do (again patent abuse).

No, I disagree. If the patents were trivial, B&N could excise the infringing code. B&N refuses to do that. So, really, this is about B&N trying to get better terms from MS. Eventually, both parties may settle. There's no way B&N will let this go to trial, they have too much at stake.Fri, 11 Nov 2011 20:58:00 GMTdonotreply@osnews.com (tomcat)CommentsRE: Oh please...http://www.osnews.com/thread?496996
http://www.osnews.com/thread?496996

Are you and the other Google apologists now saying that it's "anti-competitive" to offer one's patents for licensing? Come off of it.

Yes, they are. Because they don't like patents (unless Google is wielding them via Motorola), and they believe that MS's patents are "trivial" (although, for some reason, they won't remove the "trivially infringing code" from Android). Someone in the pro-Google camp explain this: Why don't you simply remove the code wrt infringements that have been made public already? What's holding you back (aside from whining about other peoples' patents)? Here's my take: FAT32 and LFN, for example, are so ingrained in Android and device drivers that, in fact, the patents aren't "trivial". They're a fairly widely used pattern. But it's easier to whine than do the heavy lifting of using an alternate filesystem.

BTW, the DOJ isn't going to do anything about this; there's nothing illegal in offering your patents for license, even with the threat of a private suit at the end of it. There's no monopoly-abusing goign on here. B&N are still able to use Windows on their computers at the same price that anyone else can. WHere's the case of "anti-competitive" practice? There isn't one. B&N and MS are going to have a court case to settle their differences. That court case has already been scheduled. Why bring the DOJ into it? Probably because B&N thinks they'll lose the court case.

"The main issue here (and the topic of TFA is B&amp;N's submittal to DoJ about Microsoft abusing their patents and Microsoft using the Windows monopoly in the desktop market to try to take over the mobile market

This complaint isn't going anywhere. It's not an antitrust case. MS has no monopoly power in mobile operating systems. The DOJ isn't an arbiter of supposed patent abuse. That's the role of the court. The DOJ might write an amicus brief, but that's about it. It's the court's role to decide the outcome. "

MS may not have a monopoly in the mobile space - they didn't in the web browser or office space for a long time either. However, they are trying to leverage their monopoly in the desktop space to force a monopoly in the mobile space, as they did with the web browser and office productivity workspaces. That is most certainly of issue to the DoJ and antitrust.

"I do agree that the patent case otherwise is going to be very uneventful - most likely Microsoft will lose due to the triviality of the patents, though expect them to refile with a new set of patents when they do (again patent abuse).

No, I disagree. If the patents were trivial, B&amp;N could excise the infringing code. B&amp;N refuses to do that. So, really, this is about B&amp;N trying to get better terms from MS. Eventually, both parties may settle. There's no way B&amp;N will let this go to trial, they have too much at stake. "

As to the court case there are several issues going on:

1. Are the patents even valid? B&N is challenging their validity too, which is common in patent litigation.
2. Supposing they are valid, is Android really infringing? B&N says no. Microsoft says yes.
3. Supposing there is infringement, is there something B&N can do other than license the patents? Yes; however, given how open source works (and Android is open source) the NDA may be an issue as B&N won't be able to explain why a patch should be accepted; and unless the developers like the patch they may not accept it - especially if it reduces functionality - without good reason but the NDA may prevent them from doing so. In which case, B&N either must abandon Android or use a non-standard product. Again, this goes back to the anti-trust and patent abuse as Microsoft through their use of NDA's is trying to fracture the market and force their own monopoly into the space in its place - expanding their existing monopoly illegally through extortion and patent abuse. Again, we arrive back at antitrust issues.

B&N doesn't need a better hand dealt to them; they've got a pretty strong case already. They've also got some of the best anti-trust attorney's (including the top one from DoJ); so I'm pretty sure they know there is a case to be made and have sufficient evidence to show it. However, they also need DoJ to start inquiring about the other Android patent related deals that Microsoft has done or is trying to do in order to show it's not a one-time thing - B&N can't do that.

So in the meantime, they play their hand in court with Microsoft; while at the same time press the DoJ to do something about the issue in entirety. If DoJ acts, then the case may get dismissed. If not, Microsoft will likely try to settle yet again.

Microsoft doesn't want a verdict; just extortion via FUD - a verdict removes their ability to toss around FUD, especially when it won't go kindly for them; they'll probably also try to get B&N to withdraw any USPTO actions it may have filed as well - again to maximize FUD opportunities. B&N of course would prefer a verdict an USPTO action, to remove the FUD and clear the waters Microsoft is trying to muddy.

For B&N, at worse, B&N has to pay a royalty to Microsoft if they lose the case. If B&N wins, then Microsoft gets severely limited in what it can do in the next round against the next victim of its extortion scheme. They may even get some of their existing deals revisited to have the terms revised. So Microsoft has a lot more to lose by this going to trial than B&N does.Fri, 11 Nov 2011 23:06:00 GMTdonotreply@osnews.com (TemporalBeing)CommentsRE[5]: ...http://www.osnews.com/thread?497022
http://www.osnews.com/thread?497022On the other hand, here is some information from an informed source (that stands in stark contrast your ideas.)

I thought you might like to see the letter [PDF] Barnes and Noble filed with the ITC and the slides [PDF] titled, "Microsoft's Anticompetitive Behavior in the Mobile Operating System Market", that Barnes & Nobles presented to the US Department of Justice's Antitrust Division in July and filed with the ITC as an exhibit, in which it lays out its complaint about Microsoft. It's a compelling read. There are some further exhibits also, including the Barnes & Noble letter to the US DOJ back in April.

In effect, Barnes & Noble says Microsoft is doing what's it's done in the past against Netscape and Java, only now the target is Android and the weapon of choice is patents.

I also thought you'd probably have questions about how there can be an antitrust complaint over patents, since by their very nature patents are a granted monopoly, so I found some resource material for you. For me too, actually, because I was wondering about it myself.

You'll find our old friend SCO Group on page 9 of the slide presentation, by the way, on a list titled "Microsoft Infringement Suits Against Open Source Software", with an annotation: "Microsoft provided financial support to SCO, enabling it to file and litigate several infringement suits targeting open source software." And Barnes and Noble alleges that the Nokia deal included an agreement to pool and then use patents in an aggressive attack against Open Source.

The Barnes & Noble Accusations

The overview, in the slides, of Microsoft's anti-competitive behavior is the following:

Publicly Claiming Control of Android and Other Open Source Operating Systems

Deal with Nokia Includes an Agreement to Engage in a Coordinated Offense Use of Patents Against Open Source Software

Purchasing Patent Portfolios that Threaten Open Source Software

We suspected when it was announced that the deal with Nokia was about patent aggression, and now we see it in black and white. Barnes & Noble lists three deals as anti-competitive, the Nokia deal, the CPTN-Novell patent deal, and the Nortel patent deal. You can see the "trivial patents" Microsoft used in discussions with Barnes & Noble and in its later patent infringement complaint -- not an identical list -- on page 5 of the slides.

Also, the patent infringement case Microsoft filed against Barnes & Noble is ongoing in parallel with the ITC case. Barnes & Noble's answer to the complaint is smoking hot too, and you can read it here. Barnes & Noble says in the answer that "the license fees demanded by Microsoft are higher than what Microsoft charges for a license to its entire operating system designed for mobile devices, Windows Phone 7."

Essentially, they accuse Microsoft of using patents as a weapon to carry out an anti-competitive strategy, a campaign of collecting patents for the specific purpose of attacking Android, "embarking on a campaign of asserting trivial and outmoded patents against manufacturers of Android devicesâ. We get to look behind the curtain of secrecy now, at last.

There are links to pertinent documents and more information as well.Sat, 12 Nov 2011 06:38:00 GMTdonotreply@osnews.com (glarepate)CommentsRE[2]: Oh please...http://www.osnews.com/thread?497028
http://www.osnews.com/thread?497028

B&N won't let this go to trial.

So they are just bluffing? All this work to submit information to the DoJ and subpoenaing Nokia and MOSAID is just a show that they don't even think will fool M$ but will somehow make the settlement less onerous for them.

"Car analogy: this is almost the equivalent of a car maker being allowed to choose between either NKG or Autolite spark plugs, except in the B&amp;N case B&amp;N allege that the bits Microsoft are suing over are trivial and not essential, not as important even as spark plugs, and Microsoft are asking for the entire price of the car.

That's too bad. Microsoft owns the patents. It gets to decide whether to license -- or how much to charge. That's the way our system works. And, obviously, B&amp;N and Google are pissed off about it. The courts have already ruled that MS gets to keep and exercise its IP, even if it has a monopoly. "

You don't seem to be getting it. Linux doesn't infringe on Microsoft's trivial patents, it is only that Microsoft wants to claim that it does, and cause the Linux competition a lot of expense.

"Market failure. Microsoft are supposed to offer B&amp;N an attractive price for a license to use Microst's patented algorithm, lest B&amp;N decide that other options are better and decide to use an alternative, different algorithm from another software vendor for the same purpose. At least, that is how it is supposed to work. New, patentable inventions are supposed to be more attractive, and worth licensing over standard ways of doing things

MS is under no obligation to license its patents. It could force B&amp;N to stop infringing by withdrawing its products. Licensing is probably the less expensive option. "

You don't seem to be getting it. Linux doesn't infringe on Microsoft's trivial patents.Sun, 13 Nov 2011 07:00:00 GMTdonotreply@osnews.com (lemur2)CommentsRE[4]: Out of curiosityhttp://www.osnews.com/thread?497068
http://www.osnews.com/thread?497068Quite right, what I am saying is that it is important to keep focusing on the flawed system, rather than cheering on various favorites within the system. The fact is that Microsoft also has to pay a huge amount of money on licensing deals, and they are more or less forced to take action themselves to keep the playing field somewhat even.Sun, 13 Nov 2011 09:28:00 GMTdonotreply@osnews.com (vaette)CommentsRE[9]: Comment by shmerlhttp://www.osnews.com/thread?497076
http://www.osnews.com/thread?497076As I understand it, the patents are mostly on aspects of the GUI, so the Linux kernel is probably free from threats, yes.

However, this is mostly irrelevant here, as B&N can still infringe on GUI elements.Sun, 13 Nov 2011 14:26:00 GMTdonotreply@osnews.com (saynte)CommentsRE[10]: Comment by shmerlhttp://www.osnews.com/thread?497090
http://www.osnews.com/thread?497090

As I understand it, the patents are mostly on aspects of the GUI, so the Linux kernel is probably free from threats, yes.

However, this is mostly irrelevant here, as B&amp;N can still infringe on GUI elements.

Particularly with aspects of a GUI, there is "more than one way to skin a cat", as the saying goes.

For example, Microsoft might hold a patent on something trivial such as showing download completion via a progress bar:

All this requires is that Microsoft explain exactly what trivial GUI things they feel B&N should not have in their Android devices, and B&N can simply replace them.

But no, Microsoft is being disingenuous, and refusing to say exactly what trivial GUI aspect they claim is being violated. Microsoft don't want B&N to avoid the trivial GUI functionality, they want B&N to pay Microsoft for a license for said trivial functionality, and pay more than the entire cost of a complete WP7 OS license.

However, B&N have a good point, because the entire deal with being awarded patents rights in the first place is that one is supposed to reveal to the public exactly what the invention is. One is supposed to reveal it well enough so that the public may replicate it after the patent has expired.

If Microsoft won't reveal exactly what trivial GUI functionality they are asking B&N to license, then Microsoft haven't met the terms of the deal for holding a patent in the first place. Because they haven't done the right thing, and revealed their patent, then they shouldn't be able to sue anyone over infringing it.

If Microsoft do reveal their patent, as they are required to do in order to have a valid patent in the first place, then once they have done so B&N should be able to simply remove that trivial GUI functionality from their Android devices, and replace it with some other GUI element which achieves the same end.Mon, 14 Nov 2011 05:00:00 GMTdonotreply@osnews.com (lemur2)CommentsRE[11]: Comment by shmerlhttp://www.osnews.com/thread?497095
http://www.osnews.com/thread?497095Ah? They won't reveal the patents in question?

They're in the last link from the story, in the slides presented to the DoJ by B&N.

I was only responding to your implication that B&N are somehow safe from patent litigation because they use Android/Linux.Mon, 14 Nov 2011 06:40:00 GMTdonotreply@osnews.com (saynte)CommentsRE[12]: Comment by shmerlhttp://www.osnews.com/thread?497096
http://www.osnews.com/thread?497096

Ah? They won't reveal the patents in question?

They're in the last link from the story, in the slides presented to the DoJ by B&N.

No, they aren't. No patent number(s), no active claims identified within patent(s), and no identification of which exact features of B&N's product(s) allegedly infringe(s) unidentified patents, appear in the slides.

I was only responding to your implication that B&N are somehow safe from patent litigation because they use Android/Linux.

How do you think that works? All I said was:

All this requires is that Microsoft explain exactly what trivial GUI things they feel B&N should not have in their Android devices, and B&N can simply replace them.

For what patent has Microsoft ever shown (trivial or otherwise), validated in a court case, exactly where Android/Linux infringes?

Microsoft is all hat no cattle, all allegation no proof, when it comes to actual infringements.Edited 2011-11-14 08:18 UTCMon, 14 Nov 2011 08:13:00 GMTdonotreply@osnews.com (lemur2)CommentsRE[13]: Comment by shmerlhttp://www.osnews.com/thread?497097
http://www.osnews.com/thread?497097

No, they aren't. No patent number(s), no active claims identified within patent(s), and no identification of which exact features of B&N's product(s) allegedly infringe(s) unidentified patents, appear in the slides.

Although the information isn't complete, these are presented by B&N, not Microsoft, so there could still be more information made available that B&N didn't present.Mon, 14 Nov 2011 08:26:00 GMTdonotreply@osnews.com (saynte)CommentsRE[14]: Comment by shmerlhttp://www.osnews.com/thread?497098
http://www.osnews.com/thread?497098

"
No, they aren't. No patent number(s), no active claims identified within patent(s), and no identification of which exact features of B&N's product(s) allegedly infringe(s) unidentified patents, appear in the slides.

Although the information isn't complete, these are presented by B&N, not Microsoft, so there could still be more information made available that B&N didn't present. "

I read slide 4.

As I said, no patent number(s), no active claims identified within patent(s), and no identification of which exact features of B&N's product(s) allegedly infringe(s) unidentified patents.

A strong component of B&N's complaint is that Microsoft will not identify (without an NDA) exactly what Microsoft believes to infringe.

If B&N signed an NDA, then Microsoft has still failed to fully disclose to the public what Microsoft believes it has invented, what IP believes it owns, how B&N is alleged to have infringed it. A major resource for B&N's defence would be the FOSS community digging up prior art, a search which cannot happen if there is an NDA.

The very fact that patent rights are supposed to be awarded as compensation for full disclosure of an invention to the public should invalidate Microsoft's seeking an NDA to begin with.

The fact that Microsoft believes it needs an NDA is cause enough for an antitrust investigation right there, IMO.Edited 2011-11-14 08:44 UTCMon, 14 Nov 2011 08:36:00 GMTdonotreply@osnews.com (lemur2)CommentsRE[15]: Comment by shmerlhttp://www.osnews.com/thread?497099
http://www.osnews.com/thread?497099But what are those number looking things, with the indicator: "No." beside them? I thought they were patent numbers?

I admit that they don't cite the Nook features, but the patents seem specific enough to track them down easily.

Before court, NDAs are possible, but at this point Microsoft must disclose which patents it wants to assert. In this regard the patent system is dysfunctional, hopefully the courts will sort that out!Mon, 14 Nov 2011 09:36:00 GMTdonotreply@osnews.com (saynte)CommentsRE[7]: ...http://www.osnews.com/thread?497122
http://www.osnews.com/thread?497122

Yeah, they're so non-essential and trivial that most Android licensees have licensed them.

Those negotiations are under strict NDA. If you have insider knowledge I hope you get your butt sued off. Otherwise, you have no knowledge whatsoever why any Android OEM's took licenses from MS and need to stfu.

It's not a question of "can" versus "can't". B&N wants the functionality, but it doesn't want to license the patents. Ergo, it wants its cake and eat it, too.

According to the documents I've read, B&N have cited prior art for every single patent MS is attempting to assert against them. Again, you are clueless and your stupid overused metaphor doesn't apply.

Ignorant fools like you are a pox to civil discussion.Edited 2011-11-14 17:08 UTCMon, 14 Nov 2011 17:03:00 GMTdonotreply@osnews.com (oakgrove)CommentsRE[13]: ...http://www.osnews.com/thread?497127
http://www.osnews.com/thread?497127As neither of us are legal experts, I suggest you read the following article from Groklaw which quotes several legal experts, including one from the DoJ's Antitrust department.

So they are just bluffing? All this work to submit information to the DoJ and subpoenaing Nokia and MOSAID is just a show that they don't even think will fool M$ but will somehow make the settlement less onerous for them.

My opinion is that your analysis in non-sightful. "

What they're hoping, in my opinion, is that they can somehow throw a bunch of crap against the wall -- vis a vi an antitrust case -- and make some of it stick. It's not going to work.Mon, 14 Nov 2011 23:03:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[14]: ...http://www.osnews.com/thread?497145
http://www.osnews.com/thread?497145Sorry, but Groklaw is not an objective source of legal opinion.Mon, 14 Nov 2011 23:05:00 GMTdonotreply@osnews.com (tomcat)CommentsRE[14]: ...http://www.osnews.com/thread?497147
http://www.osnews.com/thread?497147

MS may not have a monopoly in the mobile space - they didn't in the web browser or office space for a long time either. However, they are trying to leverage their monopoly in the desktop space to force a monopoly in the mobile space, as they did with the web browser and office productivity workspaces. That is most certainly of issue to the DoJ and antitrust.

Even if MS prevails in this lawsuit, they won't have a "monopoly in the mobile space", so your argument does not wash.